Why Elena Kagan Was Right to Boot Military Recruiters From Harvard Law

This week, as they question Supreme Court nominee Elena Kagan about her views of the Constitution, Senate Judiciary Committee Republicans will focus on Kagan's outspoken opposition to allowing military recruiters on campus when she was dean of Harvard Law School from 2003-2009.

"This policy at Harvard about not allowing military recruiters to come to the law school is going to be problematic for most Americans," Sen. Lindsey Graham, a South Carolina Republican on the committee predicted yesterday. "She's going to have to explain that."

One would assume Kagan is prepared to do so, as this question is part of a larger conversation that has been taking place at the front lines of the nation's culture wars for more than two decades. On one side are gay advocacy groups, the faculty at many elite U.S. universities, and the dominant (and liberal) wing of the Democratic Party. Arrayed in the other camp are the nation's military establishment, social conservatives, and most of the Republican Party.

As currently constructed, the argument against an official military presence on campus is presented this way: Military recruiters, let alone ROTC programs, have no place in a university setting because the U.S. armed forces are essentially closed to homosexuals -- and on most American college campuses any form of discrimination against gays or lesbians is strictly prohibited.

The counter-argument is equally straightforward: If university administrators, students, and faculty are so politically correct that they can't find room on their campus for the men and women who are willing to fight and die to protect this country then that university shouldn't receive a nickel in taxpayers' money.

With Democrats in firm control of the Senate, this issue alone is unlikely to derail Kagan's path to confirmation for a lifetime seat on the high court. But should it?

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Lindsey Graham's suggestion that a majority of Americans would side with conservatives regarding both military recruiters and ROTC on campus is almost certainly correct. There are several explanations for this, aside from the common-sense view that Americans privileged with the best education money can buy shouldn't be exempt from defending their country.

There are other reasons, too: For one, the United States military itself does not set the laws for determining who is fit to wear the uniform. That is done by Congress and the president. The current policy, referred to as "Don't Ask, Don't Tell," was a compromise forged in the Clinton administration when both houses of Congress and the executive branch were in Democratic hands.

Second, the current commander-in-chief has already announced his intentions to do away with the Clinton-era compromise that liberals now find so unsatisfactory – a policy implemented by the president Kagan served in the White House. And the top brass has agreed to support him.

Third, the justification used by elite universities such as Harvard to ban ROTC and military recruiters in the first place had nothing whatsoever to do with gay rights – and everything to do with faculty and student radicalism during the Vietnam War. Conservative critics assert, with some justification, that the anti-gay policy is a fig-leaf and that historically the true issue at play was left-wing hostility to the U.S. armed services.

That hostility, or at least a residual form of it, is still felt by a swatch of aging Sixties radicals and their progeny. Increasingly, however, students in the Age of Terror are questioning their elders' attitudes. A poll at Columbia showed students narrowly favoring the school's ROTC ban; at Harvard, a survey was nearly 2-1 in favor of lifting it. And last year, a Harvard junior named Mark Alan Isaacson nicely summed up for Politics Daily the doubts about the old politics among the Millennial Generation: "Don't Ask, Don't Tell is a policy of the federal government, not just the Pentagon, and it was signed by President Clinton. But Harvard doesn't seem to have any trouble taking money from the federal government, and Clinton is certainly welcome any time he comes on campus. So why can't midshipmen and cadets who want to serve their country -- and didn't have anything to do with this policy -- be welcomed here, too?"

A Tortured History

The Reserve Officer Training Corps program was launched by Congress in 1862, and signed into law by Abraham Lincoln as part of the legislation setting up land grant colleges. It wasn't particularly controversial, even at Harvard, which actually has had a proud martial tradition for much of its existence.

In 1969, Harvard's ROTC program was the oldest in the nation. To this day, one of the college's most beloved buildings is Memorial Hall, where the name of every Harvard man who joined the Union in the Civil War and paid for that decision with his life is engraved in the building's walls. At Memorial Church in Harvard Yard, the names of other Harvard graduates who served and died in America's other wars are etched on the walls of the church. First among the casualties of World War II is Franklin Roosevelt, class of 1904, who died while serving as commander-in-chief of U.S. forces still fighting in the Pacific. That was on April 12, 1945. The next day, the church was packed and the words of Harvard Divinity School President Willard L. Sperry were broadcast to the overflow crowd standing silently in the Yard. But times change.

Twenty-five years later, in April 1969, radicals with Students for a Democratic Society congregated on campus for a different purpose: to close down Harvard College in protest over the Vietnam War. The demonstrators occupied University Hall, cut the phone lines, and issued their demands. Chief among them: rid Harvard of ROTC.

Similar demonstrations were taking place in those days at most of the elite schools in the country. By the time the tear gas had cleared, the faculty and administration at Harvard, Yale, Columbia, Brown, Stanford, and others had given into the radicals' demands. The training program for students who wanted to serve their nation as officers in the United States Army, Navy, Air Force, or Marine Corps was no long welcome at the nation's most selective institutions of higher education. This was the backlash to Vietnam, and to the military draft that furnished the troops for that unpopular war.

In time, there was a backlash to the backlash. It came to be known by a name, the Solomon Amendment, named after Gerald Solomon, a conservative Republican congressman and ex-Marine from upstate New York. This law empowered the Secretary of Defense to deny federal funds to any institution that prohibits military recruiters on its campuses. The colleges fought it in court. In the meantime, they adhered to the new law. Military recruiters were back on campuses. At Harvard Law School, the upshot was that uniformed recruiting officers could avail themselves of the Office of Career Services to set up interviews with students.

This is where Elena Kagan comes in. The details of Harvard's precise policies and ensuing litigation are involved and somewhat technical. (For starters, Harvard Law School doesn't actually receive federal dollars; in addition, the undergraduate college doesn't prohibit its students from being in ROTC – it just makes them travel across Cambridge to MIT to drill and take classes.) Nonetheless, in July of 2003, Kagan took over as dean of the law school, and she adhered to the "Solomon amendment" policies that were in place. She took pains, however, to assure students that she didn't like doing so because she considered "Don't Ask Don't Tell" an abomination, and the Solomon amendment an unconstitutional incursion into the First Amendment rights of those at the university.

In November 2004, the Third U.S. Circuit Court of Appeals sided with the universities and against the government. It was at this point that Dean Kagan booted the military recruiters from the law school's Office of Career Services. Those recruiters were later restored after the Pentagon successfully appealed to the U.S. Supreme Court, which unanimously upheld the validity of the statute.

"As a general matter, the Solomon Amendment regulates conduct, not speech," Chief Justice John G. Roberts Jr., wrote in a 21-page opinion signed by every voting justice on the court Kagan now wants to join. "It affects what law schools must do --afford equal access to military recruiters -- not what they may or may not say."

Lindsey Graham and other GOP senators on the Senate Judiciary Committee may make hay of the discrepancy between Kagan and the other justices, but there is another side to this issue – a couple of sides, really – that may cut in Kagan's favor.

First, as her defenders accurately point out, Kagan inherited all of Harvard's policies in institutional opposition to the military. "As dean, Ms. Kagan basically followed a strategy toward military recruiting that was already in place," says Harvard law professor Robert C. Clark, who is something of a mentor to Kagan. He ought to know: He was the dean who preceded her, and who formulated those policies.

Professor Clark also directly challenges the notion that Kagan has any animus toward the military. "Outside observers may disagree with the moral and policy judgments made by those at Harvard Law School," Clark maintains. "But it would be very wrong to portray Elena Kagan as hostile to the U.S. military. Quite the opposite is true."

There is another defense of Kagan that Clark does not make. Aside from the specific policies regarding a military presence on campus, Elena Kagan and her cohorts inherited something else from legal scholars of Robert Clark's generation -- and it wasn't hostility to the military. Kagan was 9 years old when the SDS bullied Harvard's faculty and administration into abandoning ROTC. That is not her fight.

What is her fight – it's the fight of liberals of her age and place – is the inclusion of gays and lesbians in the civil rights mix. To Americans of this generation, gay rights is one of the last significant frontiers in this long struggle for equality. This is not a fig leaf, it is a core belief, whereas the fallout from Vietnam is a footnote in their personal histories.

Maybe this is a naïve view, and maybe when gays are fully and openly incorporated into the military, as they inevitably will be, the left-leaning elite universities will come up with some other excuse to erect hurdles to men and women in uniform. But if Robert C. Clark is sincere – and if he knows his protégé as well as he thinks he does -- Justice Kagan will be there to call them on it.